Later conflicting statements are “feigned” issues of fact

Mirjani v DeVito, 2016 NY Slip Op 00448 (1st Dept. 2016)

“It is axiomatic that statements made by a party in an affidavit, a police report, or a deposition that are not denied by the party constitute an admission, and that later, conflicting statements containing a different version of the facts are insufficient to defeat summary judgment, as the later version presents only a feigned issue of fact

EBT transcript invalid because it was not mailed to plaintiff (CPLR 3117)

Marmer v IF USA Express, Inc., 2010 NY Slip Op 04151 (2d Dept. 2010)

“Further, the unsigned deposition transcript of the plaintiff, which the defendants submitted in support of their motion, did not constitute admissible evidence in light of the defendants’ failure to demonstrate that the transcript was forwarded to the plaintiff for her review pursuant to CPLR 3116(a)(see Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos v Intown Assoc., 17 AD3d 564).”

This decision is wrong for a few reasons.  First, the cases that  the Appellate Division cites to involve non-party depositions.  Second, the law as it relates to party depositions, as the Second Department previously held in R.M. Newell Co., Inc. v. Rice, 236 AD2d 843 (2d Dept. 1997), states the following:

“The court properly considered Richard Newell’s deposition in support of defendants’ motions for summary judgment. The transcripts were certified as accurate by the court reporter, who sent them to the witness for his review and signature. Thus, pursuant to CPLR 3116(a), the deposition is usable as though signed. In any event, any statutory proscription against the use of a transcript as a “deposition” would not preclude its use as an admission of plaintiff’s controlling principal. CPLR 3212(b) states that “written admissions” may be submitted on a summary judgment motion. Further, rules of evidence provide for admissibility of admissions of an opposing party regardless of whether they are in the form of a deposition. Thus, irrespective of whether it qualified as a “deposition” under CPLR 3116, the transcript constituted proof in admissible form ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).”

Can an admission not be used against a plaintiff on a summary judgment motion due to the failure to comply with CPLR 3116?  Has this rule now changed?  Does this make sense?